GYANARANJAN PATTNAYAK Vs. STATE OF ORISSA

JUDGEMENT

(1.) THE petitioner-accused has assailed in this revision the legality of the judgment and order passed by the learned sessions Judge, Cuttack in Criminal Appeal no. 9 of 2008 confirming the judgment and order passed by the learned S. D. J. M. (Sadar), Cuttack in I. C. C. No. 890 of 2005, instituted by the opposite party No. 2-complainant, by which the petitioner has been convicted under Section 138 of the Negotiable Instruments Act (hereinafter referred to as "the Act") and sentenced to undergo simple imprisonment for one year and to pay a sum of Rs. 4 lakhs to the complainant as compensation.

(2.) COMPLAINANT's case, in brief, is as follows : complainant and accused were good friends. During the month of May, 2004 accused, who is a Film Producer, requested the complainant to advance hand loan of Rs. 3 lakhs to meet his urgent needs. The complainant, who is a practising lawyer at cuttack, accordingly, advanced hand loan of Rs. 3 lakhs on 2-7-2004 to the petitioner by withdrawing Rs. 2. 50 lakhs from his bank account and paying balance amount of Rs. 50,000/- which he had with him on the condition that the accused would repay the amount within six months. Towards the end of December, 2004, the complainant requested the accused to repay the loan. The accused, however, did not repay the loan despite several requests. Finally the accused issued three cheques for Rs. 1 lakh each with a request to encash the same after some time. The complainant encashed one of the cheques in the bank and received Rs. 1 lakh. However, cheques bearing No. 543980 dated 3-4-2005 and No. 543981 dated 9-4-2005 (marked Exts. 2 and 3 respectively)on being deposited on 26-7-2005 (counterfoil of deposit slip marked Ext. 1) were dishonoured and returned unpaid by the bank stating "funds insufficient" in the cheque return slips Exts. 4 and 5. On being intimated by the complainant, the accused requested the complainant to resubmit both the cheques in the bank after 5 to 6 days. Accordingly, the complainanat again deposited the cheques on 2-8-2005 (counterfoil of deposit slip marked Ext. 6 ). However, both the cheques were again dishonoured and returned under return slips Exts 7 and 8 with the endorsements "funds insufficient". Thereafter the complainant issued demand notice dated 8-8-2005 (copy of which has been marked Ext. 9 ). Accused received the notice sent by registered post with A. S. under acknowledgement slip Ext. 13. Copy of notice sent by speed post was also received by the accused under acknowledgment slip ext. 12. As the accused failed to repay the cheque amount despite receipt of notices, complaint was filed. Defence plea was one of complete denial. In order to substantiate the allegations the complainant examined himself as P. W. 1 and two other witnesses P. Ws. 2 and 3 apart from relying upon documentary evidence. Accused examined no witness except examining himself as D. W. 1.

(3.) ON consideration of the evidence on record, learned trial Court held that the two cheques for Rs. 1 lakh each issued by the accused in favour of the complainant towards repayment of loan were dishonoured by the bank due to insufficient funds and that the complainant instituted the complaint case after issuance of statutory notice demanding repayment within the statutory period. Accordingly accused was convicted and sentenced under Section 138 of the Act as stated supra. Learned appellate court dismissed the appeal upon consideration of rival submissions.